November 2008 Monthly Forecast

Posted 30 October 2008
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THEMATIC ISSUES

ICJ Elections

Expected Council Action
The Security Council and General Assembly will both hold elections for the International Court of Justice (ICJ) on 6 November 2008. Five judges in total will be elected to the ICJ each for a term of nine years, starting on 6 February 2009.

The Statute of the ICJ, in article 8, provides that:

The General Assembly and the Security Council shall proceed independently of one another to elect the members of the Court.

The process is intended to limit the possibility of the vote’s outcome in one organ influencing the vote in the other. Results are usually achieved quickly in the Security Council, but balloting in the General Assembly can take much longer.

Candidates
In this election, nine candidates are contesting five positions. The candidates are: Ronny Abraham (France), Awn Shawkat Al-Khasawneh (Jordan), Sayeman Bula-Bula (Democratic Republic of the Congo), Antonio Augusto Cançado Trindade (Brazil), Miriam Defensor Santiago (Philippines), Christopher John Greenwood (United Kingdom), Maurice Kamto (Cameroon), Rafael Nieto-Navia (Colombia) and Abdulqawi Ahmed Yusuf (Somalia).

Two candidates—Ronny Abraham and Awn Shawkat Al-Khasawneh—are current members of the ICJ. (At the expiry of their first term in office, judges may be re-elected for up to two further terms.)

Election Process
The ICJ consists of 15 judges elected for a term of nine years each by the General Assembly and the Council. Five seats fall vacant for re-election every three years. No two nationals from the same state can hold office at the same time.

Under article 10 of the ICJ Statute, those candidates who obtain an absolute majority (that is, more than 50 percent) of votes in both the General Assembly and in the Council are elected. A candidate must therefore obtain 97 votes in the General Assembly and eight votes in the Council. No distinction is made between the weight given to votes of permanent and non-permanent members of the Council.

Each elector may vote for five candidates on the first ballot. If the number of candidates obtaining an absolute majority is less than five on the first ballot, a second ballot for the remaining positions will be held and balloting will continue until five candidates have obtained the required majority. On the second and (if necessary) subsequent ballots, each elector may vote for five candidates, less the number of candidates who have already achieved an absolute majority. This procedure applies in both the General Assembly and the Council. If more than the required number of candidates obtains an absolute majority on the same ballot in either organ, a new vote on all the candidates will be held. (It is theoretically possible in the Security Council if the votes are evenly spread for all of the candidates to get eight votes in the first ballot.)

When five candidates (and no more) have an absolute majority in either body, the president will notify the other president of the outcome. The results are kept confidential by each president and are disclosed only to members of the second body after their own voting is concluded. (However, it is always possible that the numbers will leak from Security Council delegations.) In the event that the five candidates elected by one are not the same as those elected by the other, both will proceed (independently) to new balloting to fill the unresolved seats. As before, the results of each body will be compared only after the required number of candidates has achieved an absolute majority in each. This process will continue for three meetings, when, if all vacant positions are still not filled, the Council and the General Assembly may decide to convene a conference of six members (three from each) to recommend a candidate for the respective acceptance by the General Assembly and Security Council.

In choosing judges to serve on the ICJ, members of the Council and the General Assembly will consider not only the qualifications of the candidates, but also their involvement in advocacy, relating to issues or disputes before the ICJ or that are likely to come before the ICJ in the near future. Under article 9, the ICJ Statute requires that the electors should ensure the representation of the world’s “main forms of civilization and of the principal legal systems” in the body of the ICJ as a whole.

Political Issues
Permanent members of the Council have no legal entitlement to permanent representation on the ICJ. However, judges from the P5 are usually present on the Court. This may favour election of the French and UK candidates. Regional considerations are also likely to play a role along with incumbency. This may well favour the Jordanian candidate as he is the only candidate from the Middle East and a well known member of the ICJ, having been its vice-president since February 2006.

Background on the ICJ
The ICJ is one of the four principal organs of the United Nations—the others being the General Assembly, the Security Council and the Economic and Social Council. All UN member states are parties to the Statute of the ICJ, which is an annex to the UN Charter. The ICJ is the only international court of a universal character with general jurisdiction. This jurisdiction is twofold.

First, the ICJ has jurisdiction over all cases referred to it by state parties in the exercise of their sovereign free will. On 31 July 2008, 66 of the 192 states parties to the ICJ Statute had submitted a declaration of acceptance of compulsory jurisdiction to the Secretary-General. This means that among these states, the ICJ’s determination of disputes is binding.

States that have not declared their acceptance of the compulsory jurisdiction of the ICJ may also consent to take a dispute between them to the ICJ by way of special agreement. In doing so, they consent to be bound by the ICJ’s decision. In the event that one state party fails to abide by the ICJ’s decision, the other may have recourse to the Council. Under the UN Charter, the Council may then make recommendations or decide upon measures to give effect to the ICJ’s decision if it deems this necessary. Consent may be given either on a case by case basis or, more broadly, by submitting a declaration made under the compulsory jurisdiction procedure in the Statute (article 36).

Further, some 300 bilateral or multilateral treaties provide for the ICJ to have jurisdiction in the resolution of disputes arising out of the treaties’ application. State parties to such a treaty will normally be bound by any determination by the ICJ resulting from its interpretation.

Second, the Security Council or the General Assembly may request the ICJ to give an advisory opinion on any legal issue. The General Assembly may also authorise other organs and specialised UN agencies to request advisory opinions of the ICJ.

Recent Cases Relevant to the Council
The ICJ has recently been called upon to exercise its functions in relation to two countries currently on the Security Council agenda: first, a request for an advisory opinion on the legality of the legality of Kosovo’s Declaration of independence; and second, to determine whether the Russian Federation’s actions in the Republic of Georgia infringed the International Convention on the Elimination of All Forms of Racial Discrimination (utilising its binding dispute determination function).

UN Documents

Selected Notes by the Secretary-General

  • A/63/188-S/2008/504 (31 July 2008) provided the curricula vitae of the ICJ candidates nominated by their national groups.
  • A/63/187-S/2008/503 (30 July 2008) listed the candidates for election to the ICJ, as nominated by their national groups.
  • A/63/186-S/2008/502 (30 July 2008) set out the procedure for ICJ elections.

Selected General Assembly Resolution

  • A/RES/63/3 (8 October 2008) was the General Assembly’s resolution referring Kosovo’s declaration of independence to the ICJ for an advisory opinion.

Useful Additional Resources

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